Friday, July 08, 2011

False hopes and dreams of justice

In case you're not old enough to recognize the TV star and character at left, he is none other than Robert Stack (January 13, 1919 – May 14, 2003) appearing in his role as Elliot Ness in the Untouchables series that ran from 1959 until 1963.

Hard-nosed and dedicated to his work, Ness went after the mob in Chicago, specifically Al Capone's operation, eventually destroying or disabling a significant portion of the organization's ability to function in terms of violations of the Volstead Act (prohibition). Capone, of course, went to prison for income tax problems.

We who are old enough to have seen the legend on the small, black-and-white screen over the years, also grew up with other similarly strong, self-assured and do-what-is-right types like Perry Mason, Sergeant Joe Friday and even less famous enforcers like Lt. Frank Ballinger (Lee Marvin in M Squad).

Some of this exposure probably inculcated an expectation of swift (half-hour or an hour at the most) justice where wrong-doers are not only identified, they're captured and prosecuted.

Maybe those expectations are too high in today's more complex and sophisticated world; now, some fifty years later, a more enlightened sense of justice has emerged, one where who you are and your position where you work means you aren't subject to the same kind of risks as ordinary individuals.

Unlike ordinary people who commit crimes, corporations are given a number of special considerations, specifically, according to the Department of Justice, prosecutors (among other things) are supposed to evaluate "... collateral consequences, including disproportionate harm to shareholders, pension holders and employees not proven personally culpable and impact on the public arising from the prosecution."

This makes sense if and when a rogue employee engages in an illegal act that the shareholders and many of the other employees weren't aware of or couldn't prevent, but when widespread breaking of the law is present those considerations shouldn't be a factor.

Frankly, if shareholders are stupid enough to invest in a predator, I have little sympathy for them. As for employees not involved, I have some sympathy if they were truly ignorant. As far as impact on the public - that's absurd on its face; the impact is worse if the laws aren't enforced.

But such is the state of our Department of Justice and the evidence that has emerged is the same "too big to fail" treatment of Wall Street firms and entities in the mortgage meltdown got from the other players in Washington.

Instead of investigating crimes, in the last decade or so the Department of Justice has taken a "wink wink, nod nod" approach to a protected class of well-connected companies and executives. In this 21st century version of justice, a corporation is given a chance to investigate itself and take remedial action if need be. The term "deferred prosecution" is often used to refer to this approach.

The largest extant example of this practice surrounds Goldman Sachs. One notable analyst downplays any potential risk to the firm in the alleged on-going SEC investigation by pointing out this reality:

"With approximately 17 percent of the ownership in the hands of current and former partners, this control group has ample motivation to make amends with politicians and the public in order to reduce the threat to its franchise.Brad Hintz, Sanford C. Bernstein & Co.

With one notable exception (Lee Farkas obviously wasn't well-connected enough to make amends with politicians to reduce the threat to his franchise), Washington, more specifically, the Department Of Justice, no longer has the stomach for actually prosecuting the protected class.

But this deliberate hands-off approach has had one very important benefit for the perpetrators of the mortgage debacle  - the crimes that were committed late in the last decade and earlier in this one are rapidly aging beyond not only the statutes of limitation but are becoming compromised by the sheer unreliability or availability of credible witnesses.

Now comes the hoopla over robo-signing, LPS/DocX, fraudulent foreclosures and forgery and where is the Department of Justice?

Sitting on its hands while most of the Attorneys General of the fifty states negotiate with the perpetrators and Congress wrings its hands over mortgage servicing instead of doing something about their friends in the protected class.

Elliot Ness would be rolling over in his grave.

The Honorable Judge Roy Bean

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